TO THE HUMAN RIGHTS COMMITTEE
Observations by the Saami Council with regard to Finland’s 6th Periodic Report to the Committee
A. Briefly about the Sámi people and the Saami Council
1. Traditionally, the Sámi people enjoyed a nomadic lifestyle, with hunting, fishing and gathering as main livelihoods. Later, several Sámi communities took up semi-nomadic reindeer husbandry, while others complimented their traditional livelihoods with farming. Yet others maintained and developed hunting and fishing as their main livelihood. Still today, reindeer husbandry remains the most important of the Sámi traditional livelihoods, constituting the backbone of the Sámi culture, complemented by fishing, hunting and Sámi handicraft. The Sámi people inhabited, and had established its own society in its traditional territory - covering what today constitutes northern Finland, Norway, Sweden as well as the Kola Peninsula in the Russian Federation - well before present day states drew their borders across the Sámi territory. The Sámi people is hence indigenous to its traditional territory, something Finland also recognizes.
2. The Saami Council, established in 1953, is a non-governmental organization with consultative status with the Economic and Social Council and the International Labour Organization. It is also a Permanent Participant to the Arctic Council.
B. Article 1 - The Sámi people’s right to self-determination
Generally
3. The Human Rights Committee (hereinafter the “Committee”) has repeatedly requested States with Sámi population to report on what measures they have taken to implement the Sámi people’s right to self-determination, for instance in its last concluding observations on Finland.[1] Sweden has responded to similar requests by the Committee, and has reported relatively extensively on Sámi self-determination in its most recent report to the Committee (as well as in its latest report to the Committee on Economic, Social and Cultural Rights). Finland has, however, so far ignored the Committee’s recommendations, as well as similar recommendations by the Committee on the Elimination of Racial Discrimination (hereinafter the “CERD Committee”), which in its most recent concluding observation on Finland expressed concern that the Sámi parliament still has very limited decision-making power.[2] Finland’s inaction can perhaps be explained with the lack of progress on this issue. Finland has made essentially no efforts to further the implementation of the Sámi people’s right to self-determination since its last report to the Committee.
4. As is clear from Finland’s replies to the list of issues paras. 171-184, Finland seeks to reduce the Sámi people’s right to self-determination to a mere right to participate in policymaking and planning. Section 9 of the Saami Parliament Act merely offers the Sámi a right to be involved in negotiations concerning issues that may directly and in a specific way affect the status of the Sámi as an indigenous people. To make matters worse, this right is in reality understood as a right only to be heard, and that usually at a very late stage of the process, at a tie when it is in practical terms very difficult, essentially impossible, to influence the outcome of the decision-making. And in any event, if no agreement is reached, Sámi concerns are not taken into account.
5. Finland has recently initiated a process to diminish the Sámi people’s right to self-determination. In para. 171 in its replies to the list of issues, Finland reports how it intends to amend the legislation pertaining to Metsähallitus (the Finnish Forest and Park Service). It is reported that under the new proposed legislation, Metsähallitus, a Finnsh institution – rather than the Sámi parliament – will be responsible for managing Sámi reindeer herding, hunting and fishing in the Sámi Homeland. In other words, rather than seeking to advance Sámi self-determination, Finland is now taking permanent measures to ensure that Finnish institutions decide over matters of fundamental importance to the Sámi people, culture and way of life. (Finland’s replies to the list of issues with regard to the Mining and Water Acts etc. in paras. 175-184 are dealt with below, as they relate more to the right to culture pursuant to Article 27 of the Covenant.)
Proposed draft recommendation for the Committee’s consideration
a. The Committee reiterates its recommendation that Finland take measures to advance the implementation of the Sámi people’s right to self-determination pursuant to Article 1 of the Covenant through the Sámi people’s own representative institutions such as the Sámi parliament, and not through Finnish institutions, such as Metsähallitus, and reports back to the Committee as to what measures the State Party has taken to further this right.
Particularly on Finland’s failure to respect the Sámi people’s right to determine membership of its own group
6. In four rulings delivered on 26 September 2011, the Finnish Supreme Administrative Court overruled the Sámi Parliament’s Election Board’s decision not to add four applicant individuals to the electoral register of the Sámi parliament. The Sámi Parliament Act (hereinafter the “SPA”) Section 3 defines a Sámi as follows:
“For the purposes of this Act, a Sámi means a person who considers himself as Sámi, provided:
1) That he himself or at least one of his parents or grandparents has learnt Sámi as his first language;
2) That he is a descendant of a person who has been entered in a land, taxation or population register as a mountain, forest or fishing Lapp; or
3) That at least one of his parents has or could have been registered as an elector for an election to the Sámi delegation or the Sámi Parliament.”
Clearly, pursuant to Section 3 of the SPA, to qualify as Sámi, an individual must both meet the subjective criterion in the chapeau, and the objective criteria in examples 1)-3). Moreover, a previous precedent (1999:55) renders it clear that the descendant criterion in Section 3.2 is only relevant for a maximum of four generations.
7. Overruling the decision by the Sámi Parliament, the Supreme Administrative Court disregarded the wording of the SPA Section 3. As to the language-criterion in Section 3.1, the Court claimed that due to alleged difficulties associated with providing reliable evidence of language skills, the objective language-criterion must be interpreted against the backdrop of the subjective self-identification criterion in the chapeau. The Court further disregarded the previous precedent narrowing the objective descendant-criterion contained in SPA Section 3.2 down to four generations, by claiming that evidence of an ancestor entered into a Lapp register as far back as 1763 still indicates Sáminess. According to the Court, a more than 200 year old entry in a Lapp register can be significant for an individual self-identifying as Sámi and should be considered in an overall assessment of the matter, i.e. when contemplating whether the language criterion is fulfilled. In other words, rather than consider the subjective and objective criteria separately, as the SPA requires, the Court viewed the criteria in light of one another. As a consequence, albeit failing to meet any of the objective criteria, an applicant could nonetheless qualify as Sámi based on an overall assessment, according to the Court. In this overall assessment, the Court gave weight to the applicants’ subjective claims of “living the Sámi way in accordance with Sámi traditions”, although pursuant to Section 3, these are not relevant circumstances. In sum, the Court ruled that an individual constitute a Sámi if claiming to be a such, and being able to either point to one single entry of an ancestor in a Lapp register, dating back as far as 1763, or refer to any kind of association with the Sámi language, even if not substantiated by objective evidence. Moreover, even if the overall assessment does still not result in an applicant qualifying as Sámi, according to the Court, an applicant’s testimony of her/his “Sáminess” can give a final push over the threshold.
8. As mentioned, SPA Section 3 is clearly drafted in a manner requiring that the subjective and objective criteria are evaluated independent of one another. The provision does not allow for the overall assessment employed by the Supreme Administrative Court. Particularly troublesome is the weight the Court places on the subjective self-identification criterion and the applicants’ own testimony of their “Sáminess”, in combination with the lax attitude the Court takes towards the objective language-criterion. As a consequence, in essence, as long as a person points to one single ancestor being registered as Lapp in any register dating back to 1763, and claim to self-identify as Sámi, she/he is considered a Sámi by the Court. A person need not even claim to conform with the objective criterion set out in Section 3.1. Submission of a much looser association to the Sámi language is sufficient, according to the Court.
9. The weight the Supreme Administrative Court gives to persons’ claims of living Sámi way of life makes no sense. Only a Sámi person knows what a Sámi way of life is. Sámi life is – per definition – such identified as Sámi by those that are Sámi. Testimony on what are Sámi traditions etc. can only have value after it has been determined that the person who testifies is indeed Sámi. Until that point, such testimonies are pure speculations. This is the reason why the Sámi definition must be crafted in an exact and objective manner. One must have precise criteria of who belongs to the Sámi group before one can determine what is Sámi life and traditions. To accept testimony on what “Sáminess” is from the very person who’s “Sáminess” the Court is supposed to evaluate amounts to placing the cart before the horse.
10. The Supreme Administrative Court’s rulings open up the electoral register to the Sámi parliament to a large number of Finnish persons, including to the vast majority of the population of Northern Finland. The Sámi parliament has pointed to that 237 applicants to the Sámi parliament electoral register have relied on one single descendant registered as a Lapp in the 1763 land register. That particular register included 424 individuals. Thus, theoretically at least 237 x 424 = 100,488 individuals can claim status as Sámi based on the 1763 Lapp register alone. Similarly, in 1999, 244 persons relied on one single entry in the 1825 Lapp register, which contained 127 persons registered as Lapp. Hence, at least 244 x 127 = 30,988 persons can claim legal status as Sámi based on that register alone. In sum, not strictly applying the four generation limitation opens up the Sámi parliament electoral register to hundreds of thousands of individuals whereof most clearly are Finns and not Sámi, as the only additional criterion they need to fulfill is a claim of (i) self-identification, and (ii) some kind of association with the Sámi language. In other words, the Supreme Administrative Court essentially concludes that there is no such thing as a distinct Sámi population in Finland. Rather, according to the Court, potentially more or less the entire population in northern Finland is as much Sámi as the Sámi population, which before was recognized as a distinct ethnic/cultural group. Presently, 5483 individuals are registered in the Sámi Parliament electoral register. Hence, it only takes a smaller portion of those hundreds of thousands eligible to register following the ruling by the Supreme Administrative Cour for the Sámi to lose control over our own parliament. Once the Sámi lose control over the body supposed to govern our cultural autonomy, the Sámi culture is in imminent danger. There is an apparent risk of assimilation of the Sámi population into the majority Finnish population.
11. In its most recent concluding observations on Finland, the CERD Committee expressed concern over that the Sámi definition adopted by the Finnish Supreme Administrative Court gives insufficient weight to the Sámi people’s right to self-determination, as reflected in the United Nations Declaration on the Rights of Indigenous Peoples (art. 3), in particular their right to determine their own identity or membership in accordance with their customs and traditions (art. 33), as well as their right not to be subjected to forced assimilation or destruction of their culture (art. 8). The CERD Committee recommends that, in defining who is eligible to vote for Members of the Sámi Parliament, the State party should accord due weight to the rights of the Sámi people to self-determination, including their right to determine membership of their group, and that the Sámi must not to be subjected to forced assimilation.[3]
Proposed draft recommendation for the Committee’s consideration
b. The Committee recommends that Finland amends the Sámi Parliament Act Section 3, prior to the election to the Sámi parliament in 2015, in a manner allowing the Sámi to determine the membership of its own group.
C. Article 27 - The Sámi people’s right to land and natural resources, including to its traditional livelihoods
Reindeer husbandry as a sole right of the Sámi
12. Unlike Norway and Sweden, Finland does not protect reindeer husbandry a sole livelihood of the Sámi. The failure to do so risks resulting in assimilation as well. As the Committee is aware, in a ruling of 2 November 2011, the Finnish Supreme Administrative Court upheld a decision by Ivalo reindeer co-operative as legal under the Finnish Reindeer Herding Act (hereinafter the “RHA”). According to the co-operative’s decision, almost the entire herd of four Sámi reindeer herders in the Nellim area should be forcefully slaughtered. If executed, the Sámi reindeer herders would be forced out of their traditional livelihood, the basis for their cultural identity.
13. The situation in Nellim is a direct result of that Finland fails to protect reindeer husbandry as a distinct Sámi livelihood. To make matters worse, the RHA fails to distinguish between Finnish reindeer farming and traditional Sámi reindeer husbandry. Finnish reindeer farms can slaughter more reindeer compared to Sámi traditional reindeer herders, as farmers keep their reindeer fenced e.g. resulting in less losses to predators. The Ivalo reindeer co-operative has decided how many reindeer each reindeer owner shall slaughter each year based on what is common to Finnish reindeer farming. For the Sámi Nellim group, it is impossible to slaughter the amount of reindeer decided by the farmers, as doing so would eliminate their herds. Now, the Ivalo reindeer co-operative has decided that the Nellim Group has over the years amassed a “slaughter debt” entailing that almost their entire herd should be forcefully slaughtered. The decision is possible as the Ivalo reindeer co-operative has a majority of Finnish reindeer farmers, and since the RHA proclaims that decisions in reindeer co-operative are made based on majority rule, regardless of the ethnic composition of the co-operative.